Wheelock v. Archer

26 Vt. 380 | Vt. | 1854

The opinion of the court was delivered by

Isham J.

The case of Downer v. Woodbury, 19 Vt. 329, is decisive in relation to the first objection which has been taken to the proceedings of the constable. It appears from the report that previous to the levy of the warrant on the wagon, the plaintiff had been called upon for payment of the tax, and that he refused to pay it. After that distinct refusal to pay the .tax, it would be a useless-ceremony, to require the collector to give further time, and specify the time and place, when and where he would receive it. It was so held in the case above referred to.

The promise made by the plaintiff, after the defendant, as collector, had levied upon the wagon, that he wouldfpay the tax that week, if he would leave the property, and not take it away, can have no effect on the defendants’ liability in this action. The plaintiff’s former refusal to pay the tax justified the levy; and the collector had a right to proceed with the levy, until the tax was paid. The promise will have no effect in avoiding the consequences of his former refusal.

The proceedings of the collector, subsequent to the levy, will be presumed to be correct, unless from some fact existing in the case, they appear to be otherwise. The sale of the wagon was advertised, and we are to presume correctly so, as no fact appears to the contrary. An adjournment of the sale could be made by the officer in his discretion. The fact that in making the adjournment, he inserted “ 4 o’clock, A. M.” instead of “4 o’clock, P. M.,” was an obvious mistake, and could deceive no one. Its alteration, on the morning of the day of sale, would not mislead any one, as to the true time of sale intended in the original adjournment. In any event, we think, this matter would not render the defendant a trespasser in making the sale. Spear v. Tilson, 24 Vt. 420. The statute no where provides that an adjournment of the sale shall be in writing.

In relation to Mr. Wilder, who defends as the servant of the collector in making the levy, it is clear, that this action cannot be sustained against him for this matter. In the case of Oysted v. Shedd, 12 Mass. 511, it was held, “ that-a person assisting an officer in a legal process, will not become a trespasser, by a subsequent abuse by the officer of his authority, as he would be, if the original taking was illegal.”

These being the only objections urged against the legality of the proceedings of the collector, the judgment of the County Court is affirmed.